Much controversy and much dispute has arisen recently in the adult internet community concerning the issue of whether adult webmasters have any obligations under Section 2257. The question is whether the webmaster who buys all of his or her content without any special arrangement for their production must comply with the affirmative obligations mentioned.

Every Webmaster’s Primer on Section 2257 Compliance, Part II

By Attorney J. D. Obenberger

Much controversy and much dispute has arisen recently in the adult internet community concerning the issue of whether adult webmasters have any obligations under Section 2257. The question is whether the webmaster who buys all of his or her content without any special arrangement for their production must comply with the affirmative obligations mentioned. Some have claimed that they must,

and their argument goes to the conflict between the definition of “produces” found in the Statute and the turf covered by the definitions of “primary” and “secondary” producer found in the Regulations. The Attorney General’s only authority to promulgate regulations concerning Section 2257 is that Section itself: In any conflict between the regulations issued by the Attorney General and published in the Code of Federal Regulation and the laws of Congress appearing in the United States Code, it is obviously the laws of Congress which must prevail.

The Regulations which the Attorney General issued under the authority of Section 2257 are found in 28 Code of Federal Regulations Ch. I, part 75. The most controversial part of those regulations is a definition of “producer” that is far more expansive, covers far more territory, and includes far more persons with the scope of the regulation than would be within the scope of the term “produces” as used in Section 2257. The Justice Department scheme breaks producers down into what it calls primary and secondary producers. What it calls primary producers are the persons who actually film, videotape, or photograph the explicit conduct, and these persons are plainly within the coverage the Statute through its definition.

The controversy arises in the second category mention in the Regulation, the definition of “secondary producers”. (28 CFR Ch. I, Part 75, Section 75.1 (c) (2) and (4)). The Justice Department regulations aspire to reach any person who “publishes, reproduces, or reissues” explicit material, among others. The persons who would be exempted under the regulations are chiefly photo processors and mere distributors. So, the definition would cover just about anyone

who uses such images.

It should be clearly understood that some webmasters are surely subject to Section 2257. There is no question but that Section 2257 does apply to those who create graphic images depicting actual sexual conduct and who publish those images to internet web sites. Under the latest amendments, if any matter contains one or more “visual depictions” of actual sexually explicit conduct made after November 1, 1990, it is brought within the ambit of the statute. Under Section 2256, a visual depiction includes data stored on a computer disk or by electronic means which is capable of conversion into a visual image. Those webmasters who are content producers of visual images depicting actual sexual conduct, who come into contact with the performers for the creation of the images, are certainly required to comply with the affirmative duties provided for in that Section and summarized above. Webmasters who “custom order” or contract for the production by others of material depicting actual sexual conduct would also be producers of the content under the statutory definition. Thus a webmaster can be a producer under 2257, but this arises, under a

proper reading of the statute and the cases which explain it, not because he is a webmaster who publishes such images to the internet, but because of a deeper and stronger connection with the creation of the images or with the performers involved.

While Congress did not define the term “producer” in the Section, it uses the term “produces” in legislating the scope of the Section and in describing its reach. As most recently amended, subparagraph (h)(3) of Section 2257 defines the term as follows:

[T]he term “produces” means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted;

The affirmative duties of Section 2257 are imposed on “Whoever produces . . .matter” and on no other persons. [Emphasis added.] While perhaps not a model of good, simple, English expression, the meaning of the definition Congress gave to the word “produces” seems plain enough. In American Library Association v. Reno, 33 F.3d 78, 93 (D.C. Cir., 1994), the United States Court of Appeals for the District of Columbia concluded that the “obvious purpose” of Section 2257 “is to identity those who have had direct contact with the performers.” No known decision of any court in this nation hold to the contrary.

It was indeed necessary for a United States Court of Appeals to take this issue head on in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir., 1998). The Tenth Circuit Court invalidated language contained in Part 75 which attempted to expand the scope of Section 2257 so that it would reach the re-publishers of photographs.

Sundance Associates published five swingers’ magazines which reprinted reader-submitted photos, some of them apparently depicting actual sexual conduct. Fearing criminal liability under Section 2257, it brought sought for declaratory judgment declaring that the Attorney General’s provisions, so expanding the scope of the Section as to make them what the Regulations called a “secondary producer”, were invalid. 28CFR Ch. 1 Section 75.1 (c) (2) defined a “secondary producer” as any person who, among other things, publishes matter that contains a visual depiction of actual sexually explicit conduct. Sundance argued that the Regulations did not simply implement the will of Congress for enforcement and application of the statute, but, contradicting limitations on the kind of production which was controlled by the Statute, it improperly added activity and persons to the reach of the law.

The trial court ruled for Sundance and invalidated the “secondary producer” provisions and the Attorney General took an Appeal to the Tenth Circuit.

The Tenth Circuit held that the Attorney General’s interpretation of Congress’s definition of “produces” “flies in the face of the statutory language”. It gets stronger. The Tenth Circuit observed that the Attorney General was “twisting words to reach a result it prefers” rather than interpreting any verbal ambiguity with accepted alternative meanings. The court struck down that part of the Regulation that reached publishers who had no contact with the performers and had not contracted for the work to be produced. (To perhaps state it with too much exactitude for an article directed at a general readership, the Tenth Circuit struck the words “other than those activities identified in paragraphs (c) (1) and (2) of this section”, words which had the effect of putting all publishers of explicit material back into a definition that otherwise would have excluded all persons who “did not hire, contract for,manage, or otherwise arranging for the participation of the depicted performers”.)

Strictly speaking, the decision of the Tenth Circuit does not bind inferior courts except in the Mountain States of its territory. Strictly speaking, the Court of Appeals for the District of Columbia does not bind inferior courts west of the Potomac. However, the Tenth Circuit opinion is remarkably strong, clear, and well reasoned in rejecting a government position that it concluded was ill-founded, poorly reasoned and contrived to defend regulations that were promulgated not so much to implement the law as to do what she thought Congress should have done. Given the agreement in understanding of the definition by the D.C. Circuit and the Tenth Circuit, it is unlikely in my view that the “secondary producer” provisions will stand in any federal court, and until and unless Congress changes the definition in question, it is probably unlikely (but not impossible) that there will be any attempts to enforce that clause of the regulations declared invalid in Sundance. See generally Workman, The Record Requirement as Applied to Webmasters: Section 2257, Klixxx, Issue 5, 115, 119.

(The Sixth Circuit sidestepped the issue entirely in Connection Distributing Co. v. Reno, 154 F.3d 286 (6th Cir., 1998) by noting at footnote 3 that Connection Distributing never raised the issue of whether the Regulation exceeded the Attorney General’s power to regulate under Section 257.)

Special Cases: Streaming Live Feeds, Foreign Content and the Usenet

Explicit streaming video and live feeds are almost certainly among the kinds of material generically described as “other matter” in the Statute. Therefore, the producer of explicit feeds must in every respect comply with the provisions of Section 2257. Special practical difficulties arise that are distinctive to live feeds with respect to a location for the mandated disclosure statement and for the name or number of the work. The information acquisition and record keeping must go on continuously. Because an approved method of compliance is described neither in the Statute nor the Regulations, the scheme of compliance for those who produce such feeds should be designed in close consultation with a lawyer and a technical expert, and provide for mandatory disclosures all the way through to the destination subscriber.

Provided that the subscribing webmaster actually does not publish the content on his own site, but merely links his subscribers to the content producer’s own page, feed, and server, it would be merely improbable, but not impossible, that a court might hold that the webmaster “produces” such content: Because such images may be “contracted for” by the webmaster as they are created by the producer on an imminent, moment by moment basis, it is an open question whether

the webmaster has a sufficient connection with the creation of the material to include his activity under the definition of “produces” in the Statute that would trigger the obligations of compliance as a producer under Section 2257. It would boil down to an interpretation of those two words, “contracted for”, by a court considering the issue, probably in the context of a criminal prosecution. There are no reported cases considering this issue, and so we are dealing with uncharted territory. Were the content to run through the webmaster’s server or to actually appear on the subscribing webmaster’s own site, the matter would be more risky to him.

The whole issue becomes even more risky when offshore live feeds are the issue. As a general matter of law, the laws of Congress are not generally presumed to have an extraterritorial effect, and a law will not be construed to work outside the country unless Congress makes it clear that the effect of the law is intended to extend outside the territorial limits the United States. It would therefore appear that Section 2257 imposes no duty on foreign producers of explicit materials which are created outside the country to acquire identity information and maintain records, to make disclosures, or to make the records available for inspection. The American webmaster purchasing images and streams already made is not a “producer” under the holding of Sundance, and so, subject to the qualifications stated about the binding nature of that decision outside the Tenth Circuit appearing in this article, it would appear that there would be no Section 2257 duty on anyone with respect to that content. (However, given the severe penalty attached in criminal law to the publication of lewd images depicting a minor, the personal and societal consequences ensuing from merely being indicted and tried as a child pornographer, and because the Regulations described above have never been tested in this context, he uses such content at his own grave peril: it is more prudent to purchase images produced by those whom the webmaster knows to stringently observe the requirements of the American Statute or to himself assume the responsibilities of a “producer” for this material.)

In the case of live feed offshore content, the purchasing American webmaster is potentially contracting for such images as they are made. It depends of the agreement for the supply of images. The American webmaster is surely subject to American law. If ever there is a case that invites a court to interpret Section 2257 to impose “producer” obligations on a purchasing webmaster, this is the case. The best defenses in this case are that the webmaster is merely a distributor (which may be hard to establish if the images go out under a link from his site to destination subscribers under a contract he enters into for their continuous supply), that the webmaster is not publishing the linked feed, or that the language of the Statute imposing a duty must be limited in interpretation to actually “contracting for” the talent used in the creation of images. The webmaster should know that he invites unacceptable risk whenever he uses content of any character for which no one has assumed 2257 obligations, and that this risk is heightened, in my view, when he contracts for their creation and imminent supply. The webmaster who does not consider these issues is blindly walking into a potential mine field. Any such contract for offshore live content should be examined in detail by a lawyer representing the American subscriber website and be written with an attempt to tightly define the relationship as one outside the definition of “produces”, and it should provide the American webmaster with means to take early and constantly continuing measures to positively assure compliance by the content provider; this means more than relying on a promise, written or otherwise; to be in the safest position, he would assume the duties of a content producer himself. Finally, by linking, he should distance himself from the publication of the stream.

An undecided issue not squarely addressed in the statute is whether domestic producers of materials created offshore must comply, and the prudent advice would be that they should do so, as though the matter was made domestically and that those who purchase images from them should positively assure that they do.

It is perhaps to deal with these issues, at least in part, that the Attorney General sought to expand the scope of the Statute through the Regulations considered in the Sundance case.

It should be emphasized most strenuously that the possession and distribution of forbidden child pornography in the United States are serious crimes no matter where or when the image was created, that 18 U.S.C Section 2241 provides serious penalties (up to life imprisonment in some cases) for those who cross state lines for the sexual abuse of children under the age of 16, and that this law, enacted in the exercise of the “special territorial and maritime jurisdiction” of the United States can be used to prosecute offenses that take place outside the United States., including, literally on the Moon and on all other celestial bodies and on spacecraft in flight, under the definition of that jurisdiction. See 18 U.S.C. Section 7.

Neither the Statute nor the Regulations take specific note of Usenet postings, often the publication of a single image at a time in advertising, and they seem to have been written in ignorance of the practice as it takes place today in the newsgroups. However, there is no sensible reason to suspect that a Usenet posting with a pictorial binary attachment is anything other than the publication of a visual image under the existing laws. Some creative arguments may be crafted by the imaginative advocate that such matter was neither in the contemplation of Congress in enacting the law nor of the Attorney General in promulgating the Regulations and some aesthetic arguments do emerge from the D.C. court’s language in American Library Association v. Reno about the message-destroying effect that such a prominent notice would have on a single image of art. While I suppose that it is better to skate on thin ice rather than on no ice at all, this is not an argument that inspires much confidence in the advocate: It may be smarter not to skate at all, and to make disclosure in text accompanying the binary post. Those who spam or otherwise post their own explicit content without clear and obvious disclosure of the custodian of records information or a statement of exemption do so at the risk of violating Section 2257.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution. His firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the “real world”. His practice extends to First Amendment cases, municipal zoning and licensing, the law of privacy, criminal law and civil rights. He can be reached in the office at 312 558-6420 or paged at 312 250-4118, at any time, in any emergency. His e-mail address is xxxlaw@execpc.com

Much controversy and much dispute has arisen recently in the adult internet community concerning the issue of whether adult webmasters have any obligations under Section 2257. The question is whether the webmaster who buys all of his or her content without any special arrangement for their production must comply with the affirmative obligations mentioned.

Every Webmaster’s Primer on Section 2257 Compliance, Part II

By Attorney J. D. Obenberger

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